Changes in the law firm business model will affect pro bono. That might not be a bad thing.
For the first eight years of this century, The Am Law 200s pro bono performance traveled in one direction: up. Between 2000 and 2008 average pro bono hours per lawyer swelled by more than 65 percent, to 61.1. The percentage of lawyers contributing more than 20 hours a year climbed by almost as much. Law firms, especially large ones, seemed to have solved the pro bono puzzle: counting pro bono work toward billable goals and adding staff and infrastructure to support more ambitious (or at least more time-intensive) pro bono activities.
Then the recession hit, marking the beginning of a persistent decline. In 2011 average hours fell to 54.3, the lowest level in more than three years and a drop of almost 12 percent from its peak in 2009. The percentage of lawyers who did more than 20 hours of pro bono work plummeted to 43.5, a level not seen since 2007. The 169 firms that participated in our pro bono survey this year constituted the smallest group of survey respondents since 2001, and almost two-thirds of them received a lower pro bono score than the year before.
The bottom line is that today the future of pro bono looks a whole lot murkier than it did just a few years ago. Although a recovering economy could lift pro bono work back to boomtime levels, its just as likely that changes in law firm staffing and a business model that increasingly fixates on cost control could depress pro bono hours for years. At the same time, innovative uses of technology and partnerships with clients could amplify firms effortsa textbook case of doing more with less. The increase in pro bono hours and averages during the boom years in some ways allowed us to mask the harder questions about impact, says Mark OBrien, cofounder and executive director of Pro Bono Net, a nonprofit focused on using technology to facilitate pro bono work. Hours are important as a byproduct, but the goal today is to maximize the law firms impact.
In other words, the pro bono machine will almost certainly be different in the coming years. The big question iswill it be better? Here are some of the factors that will influence the outcome:
Leverage It's an open secret that associates bear the brunt of pro bono work at Am Law 200 firms. Young lawyers are looking for hands-on experience, and unlike their senior colleagues, they aren't yet facing pressure to generate paying business. "We're always pitching to associates in their first three years because they are absolutely the most likely to do pro bono work," says Tiela Chalmers, a pro bono consultant and the former executive director of the Volunteer Legal Services Program of the Bar Association of San Francisco. "We joke about iteven the true believers [in pro bono], they just start disappearing as they get closer to partnership."
So it's no surprise that the push toward lower leverage and smaller associate classes makes pro bono advocates nervous. While average leverage for The Am Law 100 increased slightly in 2011, the average leverage for the Second Hundred declined in 2011, for the third year in a row, to 2.04 ["Expense Report," June]. And almost all Am Law 200 firms have opted for smaller summer programs and first-year classes.
"We think the changes in the profession are permanent, and we're just not going to have as many incoming associates," says Marc Kadish, director of pro bono activities at Mayer Brown, which reported a slight uptick in average pro bono hours but a small decline in the percentage of lawyers with more than 20 hours of work. "Firms are going to be leaner, and I think that's going to be reflected in pro bono."
One potential mitigating factor is firms' growing use of staff and contract attorneyswho are generally brought on to reduce costs on billable mattersfor pro bono work. Roughly a quarter of the 44 nonpartnership track associates in Orrick, Herrington & Sutcliffe's business center in Wheeling, West Virginia, contributed more than 20 hours of pro bono last year, says pro bono counsel Rene Kathawala. And though that participation rate is far below Orrick's firm average of 75.3 percent in 2011, Kathawala says he is optimistic that the numbers will continue to go up. Similarly, Wilmer Cutler Pickering Hale and Dorr has turned to staff attorneys in its business services center in Dayton to assist with the firm's pro bono representation of students challenging disciplinary practices of public schools in Mobile. (Wilmer did not include those hours or lawyers in its pro bono submission.)
The Second Hundred Although some Second Hundred firms, such as Patterson Belknap Webb & Tyler, are standouts, the pro bono chasm between the Second Hundred and The Am Law 100 is well documented. In every one of the 13 years that both groups have participated in our annual pro bono survey, the Second Hundred has lagged behind. In 2011 lawyers at Second Hundred firms contributed an average of 33.1 pro bono hours, compared to 62.2 hours for The Am Law 100. And the Second Hundred fares only slightly better in breadth of participation, as 30.6 percent of lawyers in the Second Hundred performed more than 20 pro bono hours in 2011, compared to 48.3 percent at The Am Law 100.
Part of the reason for this divide, pro bono advocates say, is geography: There are fewer opportunities for pro bono work in the midmarket cities where many Second Hundred firms are located, compared to the metropolises where Am Law 100 firms are based. "If you're a lawyer in Grand Rapids, Michigan, you don't have quite as many choices about pro bono as those in New York or Washington, D.C.," says Pro Bono Institute president and CEO Esther Lardent. There can also be differences about what constitutes a sufficient amount of pro bono work. At many Second Hundred firms, Lardent says, "it's a tragedy of low expectations."
Second Hundred firms often lack some of the pro bono resources and infrastructurefull-time pro bono coordinators and long-term institutional relationships with public service organizationsthat Am Law 100 firms have. Of the 15 firms on this year's survey that reported that they did not have a pro bono coordinator, 11 are Second Hundred firms. Even at Second Hundred firms where there is a designated pro bono coordinator, pro bono advocates say, he or she is more likely to also be a full-time practicing lawyer on billable matters, a setup that reduces the coordinator's impact.
Take Donald Curry, the pro bono coordinator at New York's Fitzpatrick, Cella, Harper & Scinto, a Second Hundred firm. Curry volunteered to lead his firm's first formal pro bono effort in 2009, and his efforts to expand lawyers' pro bono contributions have enabled Fitzpatrick to rise to a ranking of 96 from 181 over two years. The firm quadrupled its average pro bono hours to 35.2. Yet Curry, a full-time litigation partner who devotes around 10 hours each week to administering the firm's pro bono program, says there might be a limit to further gains. "In a smaller firm like ours, we don't have a lot of excess capacity," he says. "A full-time pro bono coordinator is a luxury I wish we could afford."
For pro bono advocates, the Second Hundred represents a growth opportunity. Lardent says the Pro Bono Institute is focusing its outreach on these firms. Scot Fishman, who was director of pro bono at now-defunct Dewey & LeBoeuf, has launched Pro Bono Connection, an enterprise that will outsource experienced pro bono coordinators to firms and law departments that can't afford to hire one on a full-time basis.